Technology and Due Process Goals for low-income litigants
during the phased reopening of Maryland courts
Low-income and technologically challenged Marylanders have always faced an uphill battle in managing their legal needs. This article discusses some of the additional difficulties (over and above the normal challenges) that these Marylanders, and the legal services organizations that serve them, have encountered due to the Covid-19 shutdowns. It is followed by a set of recommendations and ideas to safeguard due process for these citizens.
In recent days, some of Maryland’s lawyers and legal services providers have felt their heads spin as they seek to come up to speed on the patchwork of remote video conference technologies being used in Maryland courts. One important layer of this headache would be resolved if all the courts would embrace a uniform video conferencing tool – at least then the lawyers could develop fluency with a single software package.
Lack of uniformity is a problem, but not the biggest problem.
But a deeper problem remains, particularly for those of us who serve client populations with little or no access to technology. While our staff have had to learn Zoom (or Webex, or BlueJeans, or Meet, or Teams, or Skype, or GoToMeeting, or JoinMe, or Connect, or …) many of our clients still rely on exactly one tool – the plain old telephone.
The plain old telephone
In the absence of in-person meetings, the baseline of communication for many legal services programs appears to be audio-only telephone calls. Even postal mail has snagged, because of the difficulty for clients and staff alike of printing documents at home, and the delays involved with forwarding mail from empty offices.
In addition to a telephone, some low-income clients have a home computer connected to the internet. Some have a printer; some a scanner.
In seeking to establish service relationships, the Women’s Law Center’s (WLC) Judicare project uses a triage question – asking clients if they are able to (a) receive email, (b) print a form, (c) fill it out and sign it, (d) scan a copy and (e) email it back. Over half of their clients do not have this ability. (It is unlikely that these clients will be able to meaningfully participate in a video conference with the court, and unfathomable that they will effectively present evidence remotely.)
If that does not work, the WLC staff member reads the forms to the client over the phone and fills them out on the client’s behalf. WLC is currently foregoing the affidavit of income and taking a verbal statement from the client.
The Pro Bono Resource Center of Maryland’s (PBRC) Home Preservation Project (HPP) reports similar challenges and a similar approach. That project has adopted a phone-only consultation model for its primarily low-income senior population and has found that it can work effectively.
A computer connected to the internet
Like WLC, HPP found reliance on US mail to be problematic, and was forced to take other steps to receive client intake information and documentation, and to establish an attorney-client relationship. HPP uses a simple web-based form, developed with software called Form Assembly (free alternatives include Google Forms – Maryland Volunteer Lawyers Service is also starting to use online Google forms to collect client information). Clients with internet access are asked to fill out the form themselves. For clients without internet access, program staff read the form over the phone and (with client consent) transcribe the clients’ answers on their behalf.
In either scenario, HPP has also been forced to loosen its standards for accepting client signatures. Clients filling out their own forms sign by typing their name and submitting. For phone-based clients, program staff explains the procedure to clients, with words like, “I’m reading you this statement… Do you agree with this statement? I’m typing your name to signify your agreement.” Both of these approaches conform to the Rules of Professional Conduct, but both are stark departures from usual practice, due to the current impossibility of meeting in person.
After providing services, HPP sends a copy of the file to the client either by email (for those who can receive email) or by US mail (for those who cannot). (Note: Sometimes emails from organizations get caught in a client’s spam filter.)
HPP observes that they cannot count on clients having access to video chat, and, interestingly, cannot even count on volunteers having access to video chat. Others echo the concern – even lawyers are not always tech savvy, and some of the most active volunteers are retired lawyers whose practices have not focused on cutting-edge technology. Moreover, even if both clients and volunteers do have access to video technology, with the profusion of offerings on the market, they may not have access to the same platform – and are thus unable to connect in that way.
Mid Shore Pro Bono serves clients in an unusually challenging technological environment. In broad swaths of the multi-county service area, no broadband internet service is available. On the Shore, already a remote area, are many small pockets of low-income residents. The long distances make it even more challenging to get to a wi-fi hotspot or other internet accessible location.
Signatures by text message
One intermediate step between an audio phone call and a web-form or email is an SMS text message.
Maryland Volunteer Lawyers Service accepts signatures via text message. Their database has the ability to text and receive texts. This has been helpful in maintaining services to the public during the lock-down.
WhatsApp on a smartphone
In some communities, a smartphone app called WhatsApp seems to consistently provide an effective solution.
PBRC’s Maryland Immigrant Legal Assistance Project (MILAP) has been able to embrace (and indeed has felt the need to embrace) a slightly more high-tech solution for counseling clients. WhatsApp allows clients to video chat and share texts, documents, and photos. These are generally three-way interactions, involving an interpreter as well as the client and lawyer. In the absence of in-person courthouse consultations, MILAP has adopted the WhatsApp smartphone app, since for the population MILAP serves, virtually all of the clients already used this tool in their daily lives, and even those who did not use the app were familiar with it.
Phone apps like WhatsApp can actually help resolve barriers faced by some of MILAP’s clients. These barriers include address instability, lack of access to a computer, and lack of available minutes on a phone. WhatsApp can be used in any wi-fi zone, and also reportedly provides user-to-user encryption.
The solution has not proved a panacea, however. Some volunteer attorneys are unfamiliar with WhatsApp, and the app must be run from a smartphone (not a computer or tablet) to access features like calling and video conferencing. The app also requires permissions on the phone from which it runs, including access to the phone’s contact list.
Forms, printers, and signatures
Many District Court and family law matters can be navigated using the court’s standardized PDF forms. This brings a welcome simplification for low-income clients who don’t have access to the legal marketplace because their matters won’t generate legal fees.
These PDF court forms have been improved over recent years, and can now be filled out online and saved without printing.
But one small change to the forms would make them tremendously more useful for low-income clients in these times. That change is to allow litigants to sign them online, so they could be saved and filed without printing.
Even low-income clients who do have access to a computer and the internet are much less likely to have a working printer, a scanner to digitize a form once it has been signed, and the technological fluency to successfully navigate all these processes in sequence.
In normal times, the Women’s Law Center would direct clients with no printer to a courthouse or library where they could pick up paper forms. With these locations shuttered, many more clients are left with no option for obtaining, signing, and sending a form.
Court hearings by video?
At this point there is little hope left that most low-income Marylanders are well-positioned to participate meaningfully in court hearings by video conference – even if the courts were to decide on a single platform. Indeed, Maryland Volunteer Lawyers Service (MVLS) reports that most of their clients are not interested in trying to communicate via video chat.
MVLS connects pro bono lawyers with clients in need throughout large areas of Maryland. During the shutdown, one category of MVLS cases still proceeding with hearings is guardianship. Based on feedback from their volunteer attorneys, MVLS reports that clients often have limited mental capacity, and many do not even understand that they are participating in a hearing because of the video format.
Printed guidance for technology-challenged citizens
One factor that can make a difference for some clients is access to clear, printed instructions to walk them through unfamiliar technological processes. A necessary (though sadly, not sufficient) step in any phased reopening of the courts with new technology-assisted processes will be the development and distribution of written and pictorial guidance. The need for clear instructions is one more argument in favor of a consistent technology approach across the courts.
- Any court dockets that rely on remote video conferencing should make available an option for litigants to participate by phone. Court should also consider the feasibility of using WhatsApp as an additional mechanism to allow litigants to participate in court processes.
- The PDF court forms made available by the judiciary should include a built-in mechanism that allows litigants to easily sign electronically, including the option to sign by typing their name.
- Courts and other government entities should provide widely available outdoor free public wi-fi zones in which citizens without internet access can safely and reliably connect via smartphone.
- Courts should unify around technology platforms, so that citizens, lawyers, and service providers can standardize their approach to cases, as well as the training they need to receive and provide.
- Courts and other government entities should provide clear, reliable printed guidance and training for any technologies they use.
- Courts should simplify, clarify, and unify their public messaging regarding the scheduling and logistics of various case types.
Dave Pantzer serves as the Director of Education, Outreach, and Technology at the Pro Bono Resource Center of Maryland.